Seize It All And Let God Sort It Out Later

Whether it’s a problem for us or them is the tacit heart of Orin Kerr’s fascinating question as to the limitations on seizures of digital evidence under a search warrant.  He does a great job of setting up the problem:

This article considers how the Fourth Amendment should limit the process of executing search warrants for digital evidence. Warrants for digital evidence are normally executed in two stages. First, agents enter the physical place to be searched and seize all computers. Second, agents conduct an electronic search for the responsive data described in the warrant. The two-stage process raises the prospect that warrants for digital evidence will be executed in ways that resemble general warrants. 

In the application for a search warrant, and in the warrant itself, there will be a description of the property to be seized together with a justification for why there is probable cause to do so.  The descriptions tend to be incredibly vague and backward, such as “all evidence of narcotics sales.” 

Hardly much of a limitation, but the argument is that agents can’t know what the evidence will be before they find it, so they can’t describe it with any greater particularly than its outcome.  For those unaware, this means that they will physically seize the baggies used to hold junior’s sandwich for lunch at school, because baggies can also be used to package drugs.  See how backward reasoning becomes its own justification?

But with a computer, the problem of vagaries is not merely internally compounded, but gives rise to a secondary problem that doesn’t (well, shouldn’t in any event) exist in the physical world. The agents seize a computer under the guise it contains evidence of some crime, but they don’t just seize the files or folders that are arguably evidence, they seize it all.

That means everything. A person’s entire digital world is now in the government’s hands.  Not because there is any authority to seize their entire world, but because it’s all on the same hard drive. And there may well be other people’s lives on that drive, pictures, records, personal communications, of people who have nothing to do with whatever it is the government is after.  Their lives too are seized.

Once seized, the government then goes through it. They may search for key words in content or file names, or they may look at everything, or whatever things they feel like looking at. Including pictures or medical records that are deeply personal and wholly uncriminal. Even those belonging to people having nothing to do with any crime. They get it all and somebody yells out, “make the popcorn, guys.” Well, maybe not popcorn, but you get the idea.

This is the general warrant notion, that the government asked for one thing based on one reason, then took everything In the world.  What to do about it?

This article argues that the Fourth Amendment should be interpreted to impose a use restriction on nonresponsive data seized during the execution of computer warrants. After reviewing the various ways courts could limit the execution of computer warrants, it concludes that use restrictions are the best way to restore the traditional limits on searches for the new technological environment of computers. 

By use restrictions on nonresponsive data, Orin means that the government should not be able to use nonresponsive data, though its unclear whether he means it shouldn’t be admissible in evidence or shouldn’t be used in any fashion, such as using it to conduct additional investigations against other people or for other offenses.

But what of the digital “plain view” doctrine, where agents “stumble” upon evidence that is nonresponsive to the warrant but, well, good stuff?

The article then revisits the author’s earlier conclusion that courts can achieve that result by eliminating the plain view exception for computer searches. While still a possible approach, eliminating the plain view exception raises underappreciated doctrinal puzzles.

The better path is for courts to rule that the Fourth Amendment imposes use restrictions on nonresponsive data because use transforms the underlying seizure from a justified and modest step needed to execute the warrant to an unjustified and invasive seizure unrelated to the warrant itself. 

This is a curious theoretical shift. It seems to be more concerned with semantics than with any pragmatic difference, so it doesn’t appear to advance any material Fourth Amendment concern.

But the key problem can be clearly seen in the rationalization for the shift, and that’s important:

…use transforms the underlying seizure from a justified and modest step needed to execute the warrant to an unjustified and invasive seizure unrelated to the warrant itself.

Orin blithely calls the seizure of non-responsive digital content, the general warrant, “a justified and modest step.”  This is a value judgment of the worst sort, that the government’s need to seize trumps privacy when seizure cannot be accomplished within the constraints of the Fourth Amendment’s specificity requirement.

While the prosecutorial concerns are limited to what can be used to obtain a conviction, the citizens’ concerns are the protection of private information from prying government eyes.  If there is no basis for a warrant to seize that lovely picture of you and your spouse at the lake, then does the fact that it’s on someone’s hard drive give government agents the right to see it?

It’s not just that they can use it, or use it against you, but that they can see it at all?  What gives the government the right to take it all, see it all, know it all, in the first place?

There is no exception to the Fourth Amendment that when it’s really, really hard to comply by limiting seizures to that for which probable cause exists and specified in a search warrant, the government gets a free pass on a general warrant with only restrictions on the back end.  Orin assumes that this must be allowable or the government won’t be able to seize computers, because computers, essentially by definition, are going to contain tons of non-responsive data as well as whatever the government has authority to seize.

Tough nuggies. The government’s need to seize is not more valuable than my right to privacy,  And once the agents watch my kid’s third grade class play, no law can make them unwatch it. That’s the evil the Fourth Amendment protects against, not just its use in a court proceeding or investigation. They don’t get to see it at all.

 

32 thoughts on “Seize It All And Let God Sort It Out Later

  1. MoButterMoBetta

    Use whole disk encryption like Truecrypt or Bitlocker and a very strong password. The drives will be as useful as a doorstop and all the stored data remains private.

    1. SHG Post author

      I’m not trashing this comment to make one point: no more comments about encryption. That’s not the point. Just stop it. No more.

  2. Patrick Maupin

    What gives the government the right to take it all, see it all, know it all, in the first place?

    Even if they aren’t searching your computer, they might stumble across that picture of you and your spouse at the lake while they are rummaging through your boxes looking for documents. And that might be OK until six months later when one of them is asked “hey, do we have any evidence that he’s ever been to that lake?” and replies “I dunno, but I saw a lot of pictures — let me check my helmet-cam footage.”

    And even if there was some part of that process he did improperly, in court we will find out that he had an amazing memory about that particular picture, which was hanging proudly on the wall when he saw it. (Meanwhile, the helmet cam footage was destroyed.)

    1. SHG Post author

      So your point is that there should be no Fourth Amendment protection because we can’t avoid inadvertent observations? Of are you just trying to show how smart you are without thinking through where your comment was going?

      1. Patrick Maupin

        So your point is that there should be no Fourth Amendment protection because we can’t avoid inadvertent observations?

        Not at all. My point would actually be more that we need to severely restrict what would be considered “inadvertent”, and not just in the computer context. What would the Fourth Amendment look like if the founders had a small device that could record every atom within a 100 foot radius and then later reconstruct them on the holodeck so that law enforcement agents could peruse the scene at their leisure any time they wanted to, even decades later? What would it look like if they had tireless robots that could crawl over that scene and others looking for connections?

        The problem isn’t that my computer is different from other things I might own that the government might want to look at; the problem is that the technological capabilities of the government to look and to remember and to make connections are growing without bound. Yes, the problem appears most often in court when the target is a computer, because those are low-hanging fruit at the moment, and some of the technologies are still quite young, so sure — focus on computers when you need to. But that’s tactics, not strategy, and Kerr’s articles are ostensibly on how things ought to be done.

        You grasp the capabilities and the principles and can write several contiguous paragraphs about the principles without referring to computers other than explaining their existence shouldn’t change the principles. Kerr gives lip-service to some of the capabilities and principles, but he has to use the word “computer” about twice in every sentence, which I find really disheartening, given that he gets paid to think about this stuff. (Fun fact: in the excerpts you quote, Kerr used “computer” 5 times, and you only used it 4 times, and one of those times was just for clarity.)

        Or are you just trying to show how smart you are without thinking through where your comment was going?

        Sorry, don’t have your laser-like focus. That’s why I don’t write a blog.

        1. SHG Post author

          There is a different with a computer. In the physical world, the laws of physics allow agents to see that which is in plain view. Unless they’re precluded from searching, which the Constitution expressly allows, they can see what’s there to be seen.

          Computers, on the other hand, allow you to see nothing and everything on equal footing. A point I’ve tried to make over and over, real world analogies don’t work well in the digital world.

    2. Peter Gerdes

      I think the point is that even within the contours of traditional fourth amendment law a specific warrant may (simply by practical considerations of what is necessary to look for appropriate evidence) result in private information not related to any crime being exposed to the government. Since the fact that the government might see your HIV meds during a search for illegal drugs or guns doesn’t automatically render such a search prohibited the mere fact that the government might stumble on private information in a computer search isn’t enough to show it’s prohibited.

      This doesn’t mean that there aren’t valid reasons why these kind of computer searches are unacceptable only that it’s not enough to note that the government might see private information. (More in another comment below).

      1. SHG Post author

        I had to read this comment twice to make sense of it. I’m still not sure what you’re trying to say, but as for “more in another comment below,” don’t count your chickens before they hatch. This isn’t your soapbox, you aren’t a lawyer, and, frankly, your comments aren’t nearly as thoughtful as you think they are.

        1. Peter Gerdes

          I’m saying that “Because the government gets to see some private information unrelated to their warrant the 4th amendment bars the search.” is not a valid argument. I don’t know if this is the argument you meant to make in your post but if not maybe you should make it more clear.

          Sure, I’m not a lawyer. And maybe my comments aren’t that insightful. I’ll let them speak for themselves. But surely the ad hominem attacks serve no purpose…the claims I make stand or fall on their own regardless of who made them.

          But hey it’s your blog and I’m not hear to annoy you so if you’d prefer I not comment just say the word and I’ll stop.

          1. SHG Post author

            No, your comments are not usually insightful. No, it’s not your choice to let them speak for themselves, it’s mine. You are insufferably long-winded, often obtuse, and almost invariably unilluminating and painfully pedantic. And you are never humorous. Not even a little bit.

            In the past, I’ve tried to point this out to you to no avail. I’ve grown weary of your wasting my bandwidth and killing my readers brain cells. You are no more entitled to make people stupider than anyone else. You may not realist that’s what you’re doing, but that doesn’t give them brain cells back. And I’ve had enough of it.

            I would prefer you not comment.

            1. Peter Gerdes

              Don’t bother approving this. It is just a personal remark to you.

              Obviously, I think you are the one who misses the point of my arguments. I think I have good reasons to believe this but I don’t care to convince you.

              But whatever you think about my comments it seems to be nothing but poor manners to go out of your way to be mean about the point. Given that I offered not to make any more comments on your blog what purposes was possibly served by being an ass rather than just saying “I’m sorry but I’d prefer you didn’t comment anymore?” Other than being bad mannered I don’t see the benefit to being insulting rather than simply saying “I don’t find I get much out of your comments and I don’t think my readers do either. I’d prefer you not take up space.”

              God your a dick but this is your place so goodbye.

          2. David R.

            Peter,

            I’m a lawyer and long time lurker. I read the posts and I read the comments. I’ve read your comments in the past. This really isn’t meant to rub salt in the wound, but Scott has told you, nicely, to stay on topic, that your comments are long and tedious, that you go into your non-lawyer version of analysis which is way off the mark. And you’ve ignored him.

            You are clearly intelligent and well-educated, but you are every bit as much of an entitled narcissist as I’ve seen here. Scott was kind to you and told you the truth so that you could try to improve, Instead, you ignored him and, even now, demand your entitlement to be treated in a way that pleases you.

            There are a lot of stupid comments here, and no doubt the worst never see daylight, but you are a nightmare, and despite your intelligence, too blind and self-centered to see it.

            So, as someone who has read your long, boring, pointless, usually ignorant, comments in the past, let me tell you. Scott was far too kind to you. I would not have been nearly as kind. Your comments sucked as much, if not more, than anyone else’s here. You are that bad.

  3. Orin Kerr

    Scott, I understand you to be arguing that the government should never be allowed to overseize at the physical search stage. That leaves two primary options for carrying out computer searches:

    1) The agents should be allowed to stay in the suspect’s home or office for several weeks as they search the computer, so as to avoid overseizing. If that means a team of agents living in the suspect’s living room for a few weeks, then so be it. That is the only reasonable way to carry out the warrant.

    2) The government should neither be allowed to stay in the suspect’s home or office for a long time nor overseize any computers. If that means that the government can’t successfully search computers, even with a warrant, then we’re just going to have to accept that crimes involving computers can’t be solved regardless of whether a warrant is obtained.

    Which position are you arguing?

    P.S. I can say more in later drafts about what “use” means, but note the discussion on the bottom of 31 to the top of 32.

    1. SHG Post author

      My position is that where the desire to search and seize conflicts with the particularity requirements of the warrant clause, the particularity requirement wins. Whether, and how, agents can search and seize consistent with the particularity requirement of the warrant clause is for someone who wants to spend his time figuring such things out to do. That’s not my concern.

      1. Orin Kerr

        Counsel, you’re not answering the question. The particularity requirement is a requirement about what the warrant says, not how it is executed. The article assumes that every warrant satisfies the particularity requirement: Each warrant states with particularity where the police can go and what evidence can be seized. This is a question of how to execute the warrant, not what the warrant says.

        So that brings me back to the question, counsel: Position 1 or Position 2?

        1. Orin Kerr

          Or, your position may be, “I want a perfect world with no hard choices, in which everyone is happy and there are no unpleasant facts that get in the way of a good theory.” If so, I’m afraid that kind of ivory-tower academic perspective isn’t facing up to the real world.

          🙂

        2. SHG Post author

          Each warrant states with particularity where the police can go and what evidence can be seized.

          Why yes. Yes, that’s exactly what each warrant says, what evidence can be seized. Expressio unius est exclusio alterius, ya know.

          1. Orin Kerr

            Scott, if your view is that no overseizure is allowed, then that brings us back to the question: Position 1 or Position 2? Either answer acknowledges the problem with your position, which I guess is why I want you to answer the question and you would rather not. 😉

            1. SHG Post author

              You’re beginning from the assumption that the need to search demands an answer. That’s like asking whether I prefer a beating or a shocking to get a confession. If you can’t manage to search without unconstitutional overseizure, then you can’t search. My position is that there is no right to engage in unconstitutional searches and seizures, even if that means there is evidence out there you can’t reach.

            2. Orin Kerr

              Scott, but that’s begging the question. The question is what kind of overseizure is unconstitutional. If your view is that all overseizure is unconstitutional, no matter what, then you have to confront the choice between Position 1 and Position 2.

              What makes the issue interesting is that technology leaves you with no great options: You have to pick the least bad option. Overseizing has its problems, but agents taking over the suspect’s home for a few weeks seems worse and reducing all warrants for digital evidence to a dead letter seems even worse than that. As a result, it’s no answer to focus on whether overseizing is good or bad in the abstract. The question is inherently relative, as the Fourth Amendment requires reasonableness not perfection. I’m asking you to pick Position 1 or 2 so I can know which one-on-one comparison to make. But if you won’t answer, I guess I’ll never know. Anyway, thanks for the interesting exchange as always.

            3. SHG Post author

              This is where advanced age and institutional memory come in handy. Way back when, say 25 years ago when computers were still a nascent technology, agents investigated, search, seized, arrested, prosecuted and, occasionally, convicted, without searching computers. So when you write:

              …reducing all warrants for digital evidence to a dead letter seems even worse than that.

              I say, nuh uh. It may eliminate one form of evidence, but somehow the feds put a lot of people in prison without seizing and searching computers. Granted, some offense, child porn comes immediately to mind, exist primarily virtually, but then, they must have something or they couldn’t get a warrant in the first place.

              In other words, it’s not the end of the world to honor the Fourth Amendment. It doesn’t make the agents’ job easier, but it won’t result in prison guards crying.

            4. Orin Kerr

              Scott, so in your view computers should be categorically exempt from searches even with a warrant, on the ground that back before people stored evidence on computers, the government was able to conduct searches and investigate cases? I see.

            5. SHG Post author

              Nope. I said nothing about categorical. Maybe someone will create a technology that can immediately sift through approved search terms/methods (whatever, I’m no computer-talking guy) that can seize only what the warrant authorizes. But until then, they can’t seize more than the warrant and Fourth Amendment allow.

              A lot of this, by the way, is reminiscent of the Mag’s Revolt. As I recall, you didn’t care for that either.

            6. Orin Kerr

              Scott, that’s an interesting perspective. And unique, too: There has been caselaw in this issue going back more than 30 years, and (as far as I know) no judge, advocate, or scholar has ever taken that view before. I will henceforth call your proposed approach “The Greenfield Rule.”

    2. Ken Mackenzie

      The problem is attachment. The data which can be seized under the warrant is on the drive. It is attached. You can’t take the target data unless you take the drive. Anything else would be a mere copy. Suppose the target data was on one page of a bound book. The police can seize the whole book. Yes that’s physical, but what is the difference? The drive is a physical item. The Fourth Amendment does not require cutting the book, nor leaving the book behind so as not to seize the irrelevant pages. So how could it require altering the drive, or leaving it be for fear of seizing irrelevant material?

  4. Tommy Dohn

    Orin Kerr is either being misleading on purpose or he’s clueless about how the government obtains the digital data most of the time these days.

    He says that law enforcement would have to get a warrant to break into your home to get that computer data anyway! So it’s all FINE. Seems like a strong limitation, right?

    Uh, except agencies like the NSA and FBI get your data LONG before they ever have to knock on your door -illegally – for one. Second, the FBI and the police can circumvent the warrant requirement most of the time these days by going directly to third party providers such as Google, Apple, Microsoft, Spotify, Netflix, etc.

    Here the government is able to COMPLETELY SKIRT the 4th amendment requirements because they assume ALL of that data you have in the cloud (which is almost all these days for many people) is NOT YOURS. The government believes that the data is THEIRS, so they never have to serve you anything.

    This is how the government is making a complete mockery of the 4th amendment these days, and what needs to be fixed BEFORE ANYTHING ELSE, if we really want to ensure a “strong 4th amendment protection” of people’s digital lives, to the point where whether you use encryption or not could be irrelevant, as either the government would be drastically punished for not abiding by the 4th amendment, or the cases would be thrown out of Court the moment the government obtains the data from anywhere else without serving you first.

    1. SHG Post author

      That’s not the issue under discussion in this post. This is a very discrete legal issue, and that’s the only issue raised in this post.

  5. John Barleycorn

    null

    I wonder if you CDL’s started wearing uniforms, if the general populace might realize the significance of what’s at stake, and the grave potential for overreach in this “new frontier fight”, sooner rather than latter?

    Bring the bright lines, battle flags if needed, but who the heck wants to turn their electronic existence into a bunker-state mentality?

    You guys could have cool insignia, medals, geezer stripes, rookie berets,and perhaps even a special patch for the occasional law professor or two that proves themselves worthy, even when they can’t escape defining “reasonable” with government shades on.

    P.S. The “agents” can afford tents if the need to stay the night but the duration threshold of the search should not including allowing them more than one meal.

    Fishing with nets not allowed. Can’t they read the sign?

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